City of Arnold v. Tourkakis , 2008 Mo. LEXIS 28 ( 2008 )

RICHARD B. TEITELMAN, Judge,

dissenting.

I respectfully dissent. The majority concludes that article VI, section 21 authorizes the legislature to delegate the power of eminent domain to third-class cities and that the TIF act is such a delegation. I disagree with both conclusions and would affirm the circuit court’s judgment.

Article VI, section 21 of the Missouri Constitution distinguishes between charter cities and non-charter cities. Charter cities are authorized to enact ordinances for the exercise of eminent domain powers for redevelopment. Non-charter cities are not authorized to enact such ordinances. However, article VI, section 21 provides that with respect to non-charter cities, “laws may be enacted” that provide for the exercise of eminent domain for redevelopment purposes. Article VI, section 21 does not expressly authorize the wholesale delegation of such power to third-class cities. Instead, it provides only that the legislature may enact a law allowing the use of eminent domain for a redevelopment project. In this case, the General Assembly has enacted no law authorizing the City of Arnold to exercise the power of eminent domain for redevelopment purposes.

Even if article VI, section 21 is construed as permitting the legislature to delegate to third-class cities the power to employ eminent domain as part of a redevelopment project, it does not follow that the TIF act constitutes such a delegation. Cities, towns, and villages do not possess the right of eminent domain absent an express delegation of such power from the state. State ex rel. Schwab v. Riley, 417 S.W.2d 1, 3 (Mo. banc 1967). Statutes delegating the right of eminent domain to municipalities are strictly construed because the exercise of eminent domain divests individuals of the constitutionally protected right to private property. See, e.g., Centene Plaza Redevelopment Corp. v. Mint Properties, 225 S.W.3d 431, 434-35 (Mo. banc 2007) (strictly construing definition of “blighted” area under section 353.020 to require findings regarding the health, safety, and welfare impacts of a project in addition to the economic benefits).

A strict construction of the TIF act reveals no express delegation of the power of eminent domain to third-class cities that supports the conclusion that the “City is authorized under several statutes, including the TIF Act, to exercise eminent domain.” Although section 99.820.1(3) establishes extensive and specific procedures for financing redevelopment projects, it provides absolutely no procedures by which third-class cities may exercise the power of eminent domain as part of a redevelopment project. The TIF act also fails to make any reference to the general eminent domain law, chapter 523, et seq., or to section 88.497, which authorizes third-class cities to use eminent domain for specific purposes. This lack of any expressly delegated statutory mechanism for the use of eminent domain by third-class cities indicates that the act was not intended to empower third-class cities to appropriate private property as part of a redevelopment project. That being the case, the most logical conclusion is that in passing the TIF act, the legislature assumed that cities seeking to exercise eminent domain as part of a redevelopment project would proceed under the eminent domain powers already granted by applicable eminent domain statutes. Because non-charter cities have no authority outside the TIF act to use eminent domain for redevelopment, a strict construction of the statute counsels a finding that the TIF act does not delegate an expanded power of eminent domain to third-class cities.

I would affirm the judgment.